Professor of Law and Director, Juelsgaard IP and Innovation Clinic

Phil Malone graduated from law school at an opportune time—right as the personal computer boom was building and the seeds of related interesting legal questions were being sowed. He went straight from law school to the Department of Justice Antitrust Division through the Attorney General’s Honors Program, where his undergraduate studies in science and interest in technology were an ideal background for his new career in law, exploring tough issues of business and innovation. After several years at Main Justice in Washington, D.C., he moved to the Antitrust Division’s San Francisco office, rising to lead counsel in a wide variety of DOJ investigations and ultimately building cases that challenged some of the tech world’s giants, including Microsoft and Oracle. His work looked head-on at competition and market dynamics in a rapidly evolving industry. It was during this second half of his 20-year career with the DOJ when Malone became fascinated with the relationship between law and innovation.

“How do we think about the best way to facilitate technological innovation—to encourage vigorous, creative development without letting market power reduce the opportunities for competing developments?” he asks.

Malone will have the opportunity to focus more intensely than ever on this and other questions, helped by teams of eager students, in his new position as the inaugural director of the Juelsgaard Intellectual Property and Innovation Clinic at the Mills Legal Clinic of Stanford Law School, which launches this winter quarter.

“A big reason this position was so attractive to me had to do with my work at the DOJ—work at the intersection of law and innovation,” he says. “When I moved on to teaching law at Harvard, one of the classes I developed was called Antitrust, Technology, and Innovation, which was all about competition policy and IT policy and innovation—about how to ensure incentives and opportunities for innovation without creating barriers that could get in the way.”

Stanford Law’s new Juelsgaard Clinic will offer students the opportunity to advocate firsthand for sound innovation policies, to work to ensure a balanced IP and regulatory climate that is sensitive to the ways in which law—whether through litigation, legislation, or regulation—can serve either to promote or to frustrate the inventiveness and entrepreneurship that provide the engine for economic growth.

“It’s a hotly contested area: What’s the best approach? What’s the right balance of patent or copyright protection? What creates the strongest incentives for creativity without interfering unnecessarily in subsequent innovation in an area?” says Malone.

Malone also brings nearly a decade of experience in clinical education with him to Stanford Law. As a professor of law and the director of Harvard Law School’s Cyberlaw Clinic at the Berkman Center for Internet & Society until this spring, he is credited with helping build that clinic into one of the school’s most popular and expanding the reputation of the center.

Malone expects the “bread and butter” of Stanford’s new clinic to be IP—patents, copyright, and trade secrets—but for that to broaden as he and the students dig into projects.

“I’d also like us to explore the impact on innovation of antitrust and competition policy, privacy and security regulation, and other key areas of law and regulation,” he says. “The work students do in this clinic will seek to ensure an appropriate balance between competing economic and social interests. On the one hand, we don’t want regulation that is so restrictive that it unnecessarily dampens innovation. On the other hand, we don’t want to discount valid concerns for issues such as privacy or security. So the goal of sound policy is to find the balance where you’re creating the best conditions for innovation while still protecting other public priorities.“

Primarily policy focused, the Juelsgaard Clinic will take on clients and projects in what Malone calls the “usual suspect” areas: Internet and information technology, creation and distribution of information, and cyberspace access and control. But the clinic will also pursue policy development in other high-tech sectors, such as clean energy, biotech, and pharmaceuticals, where innovation is also vital.

Malone’s path to this focus in law, while unplanned at the time, now seems anything but. He went to Harvard College for his undergraduate studies, where he majored in physiological psychology, the precursor to today’s neuroscience. He found the study of the mind, brain, and behavior fascinating and enjoyed working in the lab, but he didn’t like the career options. “It was either teaching or doing research for a drug company, neither of which fit me at the time,” he says. He’d spent his summers back home in New Mexico working for the county sheriff’s office, where his interest in criminal justice was piqued. So, he went to law school and quickly found his passion.

“The summer after my 2L year I split my time between a firm job and the Antitrust Division in D.C. I loved the DOJ—and knew right away it was the career for me,” says Malone. The position also satisfied his deep interest in public service. “There’s something very satisfying about knowing that if you decide to pursue a case, it’s because you and the people you work with think it’s the right thing to do for the broader good and not just because a client is paying you to do it. You have the privilege of focusing on what’s in the public interest—and then acting on it. That’s a great feeling.”

Malone’s DOJ investigation and enforcement experience over the years ran the gamut of industries and products, but the last 10 years centered on high-technology businesses, the Internet, and computer software and hardware. In 2001 Malone took a leave from the DOJ as the Victor H. Kramer Fellow at Harvard, a mid-career program that allowed him the opportunity to dig deeper into the competition and innovation issues he had been litigating at the DOJ. It also introduced him to the Berkman Center—and to teaching.

“The fellowship gave me the opportunity to really reflect on what I’d been doing. So often in practice, even if you’re working on important and exciting matters like the Microsoft case, you just don’t have the luxury of stepping back and examining the deeper implications as much as you would like.”

Now settling into his new role, Malone is looking forward to this new venture—particularly here at Stanford.

“The chance to focus on innovation as the core of the clinic, and to do it in Silicon Valley and at Stanford with so many amazing people and resources all around, is just wonderful,” he says. “To do this work here, where so much of the innovation we will be addressing is occurring, and to involve students in policy development for real clients as it’s happening, is an unbeatable combination.”

And it’s familiar ground for him and his family. “We lived in San Francisco from 1987 to 2001 while I was working in the Antitrust Division’s West Coast office. We’ve been looking for the right time and opportunity to come back,” says Malone, whose wife, Luci Herman, will be working at Stanford, co-teaching a new policy lab course at the law school and teaching in the undergraduate Program in Writing and Rhetoric. They and their two daughters are settling into life in Palo Alto too, living on campus in Stanford’s all-freshman Otero dorm, where Malone and Herman are resident fellows, and getting around in a decidedly non-tech way—walking. SL